August 26, 2009

Cherise D. Thomas
Secretary
Board of Public Service
1200 Market St., Rm. 300
St. Louis, MO 63103

Re: Application No. 115721 (Request to display "Ella Phantzperil" statue)

Dear Ms. Thomas,

I am counsel to People for the Ethical Treatment of Animals (PETA) and am

writing in response to your August 18, 2009, letter to Thomas Deans, stating that
the Board of Public Service voted to deny PETA's application to display its statue,
"Ella Phantzperil" – purportedly because Ordinance 49771 prohibits "any
advertisement in or adjoining any public park, place or square."1

For at least three reasons summarized below, the Board's action raises serious
questions as to whether the Board acted in good faith in reviewing and voting on
PETA's application.

First, the applicable section of the ordinance has been repealed, effective as of
May 22, 2009.2 Therefore, no legal basis exists for denying PETA's application.

Second, even if the ordinance were still "technically" in effect, it is

unconstitutional. The City has previously been the subject of a restraining order
enjoining the City from enforcing the ordinance. In the case Apple of His Eye,
Inc. v. City of St. Louis, 2008 WL 2568 (E.D.Mo. June 24, 2008), the City was
sued on the ground that the ordinance was an unlawful prior restraint of free
speech, in violation of the First Amendment of the U.S. Constitution.

The federal district court for the Eastern District of Missouri agreed with the
plaintiff that the City's enforcement of the ordinance posed a threat of irreparable
harm, based on "well-settled law that a 'loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.'" Id.,
quoting Elrod v. Burns, 427 U.S. 347, 373 (1976). The Court also ruled that the
plaintiff had shown "a probability of success that the [ordinance] is

1
Section 54 of Ordinance 49771, codified as section 22.16.100 of the Revised Code of the City of
St. Louis, states in its entirety that "No person shall parade, exhibit or distribute any
advertisement, circular or handbill in or adjoining any public park, place or square." (Ord. 49771
§54, 1960 C. §224.100).
2
Board Bill No. 25, introduced by Alderman Craig Schmid in April 2009, and adopted as
Ordinance 68342, effective as of May 22, 2009, provides that "Section 54 of Ordinance 49771,
currently codified as Section 22.16.100 of the Revised Code of the City of Saint Louis, is hereby
repealed."

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unconstitutional." Id. The Court therefore entered a preliminary injunction
prohibiting the City from enforcing the ordinance against the plaintiff.

The decision in Apple of His Eye follows a long line of U.S. Supreme Court
decisions that have invalidated ordinances similar to Ordinance 49771 as unlawful
restraints of First Amendment freedoms. See, e.g., Schneider v. State of New
Jersey, 308 U.S. 147 (1939) (holding that ordinance providing that "No person
shall distribute in, or place upon any street or way, any placard, handbill, flyer,
poster, advertisement or paper of any description" was unconstitutional); see also
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (holding that
the City's refusal to allow the plaintiff's freestanding newsracks located on public
property violated the First Amendment).

Like the plaintiff in the Apple of His Eye case, PETA will suffer irreparable harm
if it loses its First Amendment freedoms as a result of the City's decision to
enforce the (repealed) ordinance against PETA.

Third and finally, even if the ordinance still existed (and it does not), and even if it
could conceivably pass Constitutional muster (and it cannot), the ordinance does
not apply to PETA for the simple reason that "Ella Phantzperil" is not an
"advertisement, circular or handbill," within the meaning of the ordinance. The
Board's apparent conclusion to the contrary does not survive even the mildest
scrutiny.

For all these reasons, we respectfully request that the Board immediately reverse
its order and grant PETA's application in all respects.

Very truly yours,

Martina Bernstein
Litigation Counsel

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